Monday, September 03, 2007

On Judge Smith

May 1, with the publication of Reade Seligmann’s alibi, which showed that Mike Nifong had obtained an indictment against at least one demonstrably innocent person;

May 15, with Dave Evans’ speech on the courthouse steps, which shattered the Selena Roberts/Group of 88 caricature of the lacrosse team as thugs;

June 14, with the publication of Jim Coleman’s letter to the N&O, demanding that Mike Nifong step aside from the case;

Dec. 15, with the revelation of the Nifong/Meehan intentional agreement to file an incomplete report.

A less well-known turning point, however, came when Mike Nifong included Osmond Smith on his list of four possible permanent judges for the case. (Nifong’s other three selections were blatantly pro-prosecution; the idea of Smith had been floated to him by Bill Cotter, the one member of the defense team who retained something of a relationship with the ex-DA throughout the case.) Smith was also on the list supplied by defense lawyers, who considered him a fair judge. Nifong consulted his chief ADA, David Saacks, who had tried a case before Smith, and Saacks assured his boss that Smith was fair. But, of course, the last thing Mike Nifong needed was a fair judge in this case.

The initial two judges assigned to the case did everything they could to prop up the embattled DA. Judge Ron Stephens—who handled the case from the March 23 non-testimonial order through June 30—was last seen providing character testimony for the convicted Mike Nifong at the ex-DA’s criminal contempt trial. Stephens absurdly signed on to the NTO even though police didn’t have anything resembling probable cause against all 46 lacrosse players. He was openly contemptuous of Reade Seligmann’s first attorney, Kirk Osborn, in court—sending the message that he believed the accused players were guilty. One defense attorney, in fact, wondered if Stephens and Nifong had conversations about the case outside the courtroom.

Stephens’ successor, Kenneth Titus, made perfectly clear that—as a judge who had to stand for reelection in Durham—he was terrified of the NAACP. Since the civil rights organization tilted toward Nifong, Titus did as well, most notably by imposing a de facto gag order that the NAACP had championed once facts started emerging that undermined Nifong’s case.

Smith, on the other hand, made clear from the start that his interest was in justice, not in using his authority to favor one side or the other. Unlike Stephens, he kept television cameras out of the courtroom for pretrial hearings. And in his initial hearing on the case, he abandoned Stephens’ passive “hear-no-evil”/”see-no-evil” approach and personally pressed Nifong on the extent of his conversations with Brian Meehan.

Smith: So his report [Meehan’s May 12 report] encompasses it all?

Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Smith: So you represent there are no other statements from Dr. Meehan?

Nifong: No other statements. No other statements made to me.

Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

We now know that Nifong was lying when he made these statements.

Smith also—clearly contrary to the hopes of both Meehan and Nifong—ordered the state to turn over the underlying DNA data, a move that set in motion the dissolution of the case.

At the December 15 hearing, meanwhile, Smith made two critical decisions—neither immediately apparent—that showed his interest was in ensuring all the relevant facts came out. First, in a pre-session conference in chambers, he turned over to the defense (under seal) virtually Crystal Mangum’s entire psychological file, which totaled around 1000 pages. This information would have been critical to eviscerating Mangum had the hearing to suppress the photo ID lineup ever occurred. It’s very hard to believe that Judge Stephens—focused, it seemed, on bolstering Nifong’s case at all costs—ever would have turned over this material, despite its obvious relevance.

Second, Smith gave first Brad Bannon and then Jim Cooney plenty of time to examine Dr. Meehan in open court. It’s not hard to imagine how Judge Stephens would have handled this matter: after Meehan (falsely) responded “no” to Bannon’s first question (did the tests reveal unreported male DNA?), the judge doubtless would have shut the interrogation down.

The defense attorneys understood the significance of Smith’s role. Here’s Joe Cheshire, from Until Proven Innocent: Smith is a “great judge” who “plays it right, straight down the middle. When he got him we knew we were on a level playing field. We knew we no longer needed to worry about the possibility of home cooking” by the judge.

After the December 15 hearing, Smith could have inserted himself in such a way to frustrate the ultimate cause of justice. For instance, he could have demanded that Nifong and defense attorneys appear for an immediate hearing on possible sanctions—a move that could have led to the dismissal of the case on procedural grounds, but also would have eliminated the possibility of the AG’s declaration of actual innocence. Or he could have demanded action before the State Bar completed its actions, thereby diminishing the effect of its disbarment of Nifong. Or, once the case was dismissed and Nifong was disbarred, he could have done nothing, arguing that the matters raised by the Dec. 15 hearing were moot.

Instead, Smith bided his time and, when appropriate, scheduled the criminal contempt hearing. He presided over it with his typical fairness. He gave Nifong attorney Jim Glover all the time Glover needed for the attorney’s “bore-the-court” strategy—but he also consistently overruled Glover’s substantial objections. Smith’s carefully tailored finding of facts gave Nifong no grounds for appeal. And his decision to sentence the ex-DA to one day in jail rather than the maximum also ensured that no higher court would overturn his sentence.

Smith has come under some criticism for that decision, which strikes me as unfair:

First, as Duke Law professor Tom Metzloff pointed out, the sentence—with any jail time—was “unprecedented . . . This just doesn't happen. This was a very important moment because it showed that the court system really cared about what happened in this case.”

Second, criminal contempt is, by its very nature, a crime where deterrence and symbolism are more significant than the length of the sentence itself—one reason why the maximum sentence is a paltry 30 days.

Finally, Smith’s decision not to impose a maximum sentence robbed Nifong and his enablers of the argument (which they had floated before the trial) that the judge had a closed mind and had behaved improperly by not recusing himself from the case.

Smith made one ruling with which I disagreed. Friday afternoon, assistant special prosecutor Boyd Sturgis asked Nifong why he referred to Crystal Mangum as the “victim.” Glover immediately objected; Smith sustained. Smith’s ruling was probably correct as a matter of law—but given Nifong’s repeated use of the term, and the ex-DA’s implications that a crime might have occurred, I wish the judge had allowed Nifong to answer the question.

In general, however, it’s hard to believe that this case would have ended as it did—correctly, and as a vindication for justice—without Osmond Smith as the judge. And his decision to sentence Nifong to jail—an “unprecedented” act, as Metzloff pointed out—shows that, until the end, Smith was most interested in upholding the integrity of the legal system.

Smith is a “great judge” who “plays it right, straight down the middle. When he got him we knew we were on a level playing field. We knew we no longer needed to worry about the possibility of home cooking” by the judge.

Cheshire is so delightfully folksy.....but always with a cleaner's press.

I guess our frustration has to do with the fact that without Federal intervention, 1 day is all Nifong will spend in jail. And that is a travesty, notwithstanding the fact that he may never have been sanctioned at all, except for "some" good luck on the defense's side.

Smith made one ruling with which I disagreed. Friday afternoon, assistant special prosecutor Boyd Sturgis asked Nifong why he referred to Crystal Mangum as the “victim.” Glover immediately objected; Smith sustained. Smith’s ruling was probably correct as a matter of law—but given Nifong’s repeated use of the term, and the ex-DA’s implications that a crime might have occurred, I wish the judge had allowed Nifong to answer the question.

Most everyone can agree with this.

Now that KC has done the play-by-play of the hearing, it's easier to understand Smith's decisions.

Most of us were bringing in emotions from the entire case, but the one-day sentence, for its intended purpose, did send a chilling message to those inside the legal community.

I have praised Judge Smith here before. And I am one who predicted on the day of the contempt hearing that Nifong would get a fine and no jail time, or, at worse, a day or two of jail time.

This was an excellent post by KC. He should consider running for judge somewhere. Believe it or not, most judicial positions do not require that you be a lawyer.

I agree with KC on Judge Smith's rulings. Any idiot-judge will rule on objections correctly 90% of the time. A great judge will rule correctly 99% of the time. Of the time I was able to watch the Nifong contempt hearing, none of Judge Smith's rulings struck me as incorrect.

I agree with KC that it would've been nice to hear Nifong's response to the question about why he still refers to CGM as "the victim". But the question was (1) argumentative and (2) non-germane. It wasn't like it was toxic with objectionableness, but Judge Smith still made the correct ruling, imo.

Those who have viewed the lacrosse HOAX from afar or with a political agenda divorced from Durham or the '88 may wonder how otherwise reasonable people could come to such completely differing opinions on the events of Durham and Duke, circa 2006, as they transpired. For it is clear that the course of justice was dependent, in part, on the administrators of that justice. It is fortunate that the Attorney General of North Carolina and Judge Smith were able to parse the rhetoric and arrive at a correct conclusion ... and justice for the victims.

It is unfortuante that Nifong and Peterson and others refuse to acknowledge facts and reasoned opinion. Their blinded eye and emotion driven acceptance of false truth is a failure of justice, for the mere fact that they continue to believe that "something happened" speaks to the agenda-driven and emotional feminism and racism and classism central to the national celebrity of the HOAX. It seems as if there will always be those who will say that CMG was the victim and that a conspiracy of wealth and power thwarted her rightful claim of violation.

Those who choose to adopt such a fact-ignoring position are among those who are dangerous in our society. They do not care about facts or opportunity of the process or justice ... they are concerened with results, however obtained.

They are dangerous. Victoria Peterson is among the most advanced at delivering this particularly demented form of injustice.

Fine discussion of Judge Smith's role. He's smart about how to do right. Our system needs folks like him. We sure as heck don't need Nifong or the 88 For Hate. Bringing out Judge Smith's approach and care provides good lessons for all of us.

I'd have to pick as the biggest turning point Dec. 15, with the revelation of the Nifong/Meehan intentional agreement to file an incomplete report. That's when the case went nova against Nifong, and many (like me) who hadn't closely followed the case made their minds up quickly. (Conservatives had not been solidly united for the lacrosse players.) The fireball took a while to expand, but starting on that day you could see it coming. Railroading young men toward 30-year jail terms. And suddenly one could no longer give him the benefit of a doubt about many other things -- for instance, his starry eyes for the media circus, his reelection prospects, and his pension ambitions.

Actually, the real fire was Nifong's conduct, destroying the credibility of his office and its prosecutions past as well as present and future. It was too late to erase those doubts, and he would have to be punished as a deterrent to such conduct by others. That it didn't happen faster made it that much more assured; the system had to be shown to work, people around the country had started asking, is any responsible person in charge in North Carolina? You could see that the fire would have to stamped out.

Long before the facts began to come together, I was totally appalled that a DA would appear on so many national media outlets, with such apparent relish and enjoyment of the pursuit of the Duke LAX players.

His bias was obvious, and his "good guy" vs. "Bad Guys" script was melodrama at its highest.

Mike Nifong looked more like a Hollywood actor than a professional administrator of law.

He still does.

Sad thing is, he has come to believe the script as if it were really fact.

He needs some of those good friends around him who will do him the good deed of forcing him to see truth. It would be very sad thing if Mike Nifong went to his grave without ever having truly repented for what he did, and moreover, for what he attempted to do.

One of the biggest turning points in my mind was when Reade's father dropped what he was doing to travel to Durham and personally uncover as much evidence as he could to vindicate his son. I am happy to see that you have basically put that in your list as well, with the following:

"May 1 ... publication of Reade Seligmann's alibi, which showed that Mike Nifong had obtained an indictment against at least one demonstrably innocent person."

Would the Durham Police Department have located that exculpatory evidence? If so, would they have turned it over to the defense? Mr. Seligmann was able to talk to Elmo before he forgot the events of the evening, get the bank video tape before it was erased, etc....____________________

I liken Nifong's agreement to proceed before Judge Smith to the O.J. prosecutor's agreement to permit a change of venue. Both were critical mistakes that, in my mind, allowed the subsequent history to basically write itself.____________________

The only problem I had with Judge Smith's ruling was his mention of any findings about a "conspiracy" between Meehan and Nifong. I thought that that was dicta, completely unnecessary to the contempt proceeding. Selfishly, I wanted more jail for Nifong, but I also understand he was on trial for lying and not for malicious prosecution. It is up to the feds to do real justice. _____________________

Would Judge Marcia Morey permit little white lies in her courtroom, such as, "Judge, you sure lied well on the stand the other day."? _____________________

This was an amazing blog dealing with technical legal questions. MOO! Gregory

In the last few days, KC has praised a corrupt cop and a cowardly judge.

I still have the deepest respect for KC and the awesome work he's done in defending three innocent young men. The heavens aren't going to fall nor the earth stop in its orbit because he's done something I disagree with.

Nonetheless, the fact still remains that KC has praised a corrupt cop and a cowardly judge.

While I certainly don't agree with KC on everything (I think his critiques of the academic performance of certain professors may be misleading to a lot of people, leading them to believe that these professors are representative of the professorate at Duke), his take on Judge Smith is excellent...... Given the "good ol' boy" atmosphere that obviously exists between prosecutors and judges in Durham, Judge Smith was fair, thoughtful, and in my view, acted appropriately given the nature of the hearing. It's important to bear in mind how rare personal sanctions are in the criminal justice system....... the usual penalty for both police and prosecutorial misconduct is trial sanctions, such as not admitting the pre-trial lineup as evidence, or not admitting a confession into evidence. Time will tell, but I'll bet that both the state bar hearing and the contempt hearing will be high on the list of subjects discussed at continuing legal education seminars for prosecutors, nationwide............

I can not agree with Professor Johnson here praising not letting cameras in the court room. Cameras were needed in his courtroom for any hearing in the Duke Lacrosse cases.

Clearly it appeared to thinking people that a railroad job was being done. Others of course believed these guys would get off because their families would buy them out of it. Sunshine is maybe the best disinfectant in cases like this and all examples of government corruption. Confidence in the judicial system was in the balance. If the hearings has been broadcasted, then more would have seen Nifong lie and that lie being revealed. That would have likely made for fewer now believing happened in that bathroom.

Anytime a branch of government appears to be corrupted, sunshine in cameras showing the public what is going on is a great step toward correcting the problem. Cameras can reassure the public everything is ok or they can show the public there is in fact a problem or they can deter the potential corrupt government offical.

Thanks, JLS. I thought the same thing about Judge Smith's ruling to keep the cameras out of the courtroom.

If ever there was a case that required absolute public access to the court proceedings, this was it. It was obvious by that stage of the case that the public could not rely on the media to fully and accurately cover the proceedings.

The proceedings were already starting to smack of a coverup when Smith's predecessor, Titus, issued that bogus gag-like order that extended attorney ethical rules to laypeople. The ruling was simply outrageous and unconstitutional pandering to the NAACP.

To his credit, Judge Smith lifted the order, but on the heels of lifting the order, he shut out the TV cameras. It didn't smell right then, and it still doesn't.

Thanks, JLS. I thought the same thing about Judge Smith's ruling to keep the cameras out of the courtroom.

If ever there was a case that required absolute public access to the court proceedings, this was it. It was obvious by that stage of the case that the public could not rely on the media to fully and accurately cover the proceedings.

The proceedings were already starting to smack of a coverup when Smith's predecessor, Titus, issued that bogus gag-like order that extended attorney ethical rules to laypeople. The ruling was simply outrageous and unconstitutional pandering to the NAACP.

To his credit, Judge Smith lifted the order, but on the heels of lifting the order, he shut out the TV cameras. It didn't smell right then, and it still doesn't.

I have been one of the people most critical of Oz Smith. No matter how it's spun, the one-day sentence Smith gave Nifong is an affront to justice. There's no other way to say it.

The opinion of Duke Law's Tom Metzloff is of little weight. Indeed, save James Coleman, the opinion of anyone at Duke Law school counts for little, in my opinion. This cabal of high-toned lawyers stood by like store window dummies while a near-lynching took place under their very noses. Meanwhile, they've got thousands of man-hours to waste on defending enemy combatants who are trying to kill US citizens.

Smith's defenders say he's fair. I agree and have publicly acknowledged that. But the fact that a "fair" judge is held up as a hero is to me prima facie evidence of the corruption of the North Carolina "justice system." I have this quaint idea that judicial "fairness" should be a normal thing, not a rarity.

KC also fails to mention Smith's comment that Nifong and Meehan did not conspire to hide the DNA evidence. Of course they conspired. Why did he say that? It had no bearing on the narrow issue of Nifong's guilt. Has Smith now joined the "it's time to move on" crowd?

I certainly hope there's a Federal criminal investigation. The North Carolina legal establishment is incapable of self-regulation. I'm from Louisiana and I know what political/legal corruption looks like.

on cameras in the courtroom:I watched the OJ trial from stem to stern and heard the evidence, including DNA. From an evidentiary standpoint, it appeared that there was NO way OJ could escape conviction. Alas, LA turned out to be like Durm. People in Durm reacted with their hearts, not their heads just like the OJ jury. As the guild ot OH was demonstrated, the evidence was overwhelming of Reade's innocence.Anyone who thinks a judge is not like a potter molding the case rather than clay need only look at Judge Ito, who lavished in the national limelight much like Mikey did.

As for "Vick"ie Peterson, does she believe "something happened" to the dogs. They truly were innocent victims where CGM can in no way be considered a victim!

I'm persuaded by KC's arguments; I had been persuaded by Judge Smith's early warning to Nifong about potentially showing contempt of court, persuaded that an actual violation would bring down a wall of justice upon Nifong's head.

Thus, I hoped for too much.

I was angry at Smith: the fair warning should have been enough to send Mikey to the hoosegow for 30 days, longer (for additional contempt) if he persisted in pusuing delusional, extremely insulting defenses. I thought there were possibly a second round of charges in-the-making, including lying. On the other hand, if everyone who lied in a court of law were subject to contempt of court, the courts couldn't atay open for long.

I further suspect that Mikey's lawyer was attempting to do more than bore the court: he was trying to piss it off in a way that any ruling unfavorable to Mikey would result in an appeal. In other words, he was attempting to foment mistakes.

That is where Judge Smith has my respect - and my apology - since it is obvious that so many local interests have worked as a unit in order to attempt the lynching of the three once-accused young men.

I also didn't quite get the gravity of the symbolism of the verdict, other than the fact that it is hard to appeal a one-day sentence, and that it would be prohibitively costly for Mikey to do so. Appeal? For a day in jail?

1. This was a CONTEMPT hearing, not a hearing about the merits of the case or Nifong's overall conduct;2. The punishment was for contempt IN THAT SITUATION, not for what he did overall;3. The "guilty" finding also was the opening of one more crack in the Nifong wall, and it will have much more reverberation than any one-day jail sentence;4. As K.C. has pointed out, this procedure has increased the possibilities of outside criminal investigations. I can assure you that the civil investigations will be devastating, as the hiring of Barry Scheck and ALL of his connections is a sign that the Seligmanns will be relentless in going after this one.

People can agree and disagree on what Smith did -- or should have done -- but does ANYONE think that had Stephens remained on the case that Nifong would have been de-fanged?

Keep in mind that so many judges in the system today are former prosecutors, and they form a tag team with the present prosecutors. When Reade Seligmann walked into that courtroom that day, he was facing not only a prosecutor who was permitted to act in a manner that broke every rule of courtroom decorum, but also faced a judge who was a de facto member of the prosecution team.

Modern prosecutors for the most part do not care about guilt and innocence. They see themselves as lawyers for the government, which means they are hammers, and the rest of us are nails. We forget that before and during the LAX case, Nifong and Jim Hardin before him abused defense attorneys and lawyers who did not kowtow to them found their cases delayed or had other obstacles thrown in their way, given the power that the State of North Carolina gives prosecutors to set the dockets.

So, say what you will about Judge Smith, but I also will say that because of what he did, the only person to go to jail in this case is the man who was trying desperately to obtain wrongful convictions against three young men who ultimately did not go to prison.

Furthermore, I do not believe this is an end to this affair. Nifong and others understand perhaps better than do we that they are facing much more down the road. Judge Smith has made that moment possible.

Again, I ask the simple question: What would have happened had Ronald Stephens remained the judge in this case?

Bill Anderson at 8:15 points out a very scary scenario. If Nifong had not been so cocky (and dumb), he would have accepted one of his home boys as the judge and the case would have gone to trial in the spring, when he would have asked for the a dismissal because his "victim" was in no shape to testify, even though she really wanted to. All the State Bar would have gotten Nifong for would be the pre-trail statements, resulting in a mild censure, and he would still be the Durham DA. And forget the lawsuits and the statement of innocence.

Anonymous said... What would a DA have to do in Smith's court to be held in contempt and serve a 2 day sentence?

9/3/07 8:16 AM

Tampering with evidence. For more days, planting evidence would do.

Folks, keep in mind that this was merely hiding evidence, and not so important (apologies to Brad Bannon) evidence at that. By far the most important DNA evidence was that there was no match to the Laxers, not that there were matches to other men. Now if Nifong had hid the fact that there were no DNA matches to the Laxers, that would've justified a much more serious punishment.

Now, I have a question: What does a tenured professor have to do to get punished?

Finally, I want to renew my call for a Duke student holiday on the anniversary of "Listening Ad", April 6th. It could be called "Respect for Students Day".

Cost to the Lax 3 to defend themselves against Nifong's bogus charges -- $3+ million

Cost to Duke to avoid negative publicity by working out a settlement -- Unknown except to the parties, but believed to be "north" of $3 million

Cost to Nifong for his Bar Hearing to get the news he was disbarred -- $8+ thousand

Cost to Nifong for being held in contempt of court by Judge Smith -- 1 day jail sentence

Knowing Nifong knows he's the one wearing the orange jumpsuit and not any of the Lax 3 -- Priceless!

I started from the position that a one day sentence wasn't enought. Through comments by KC and some of the attorneys here I have come to understand that FOR THIS ACT OF CONTEMPT, it's that Nifong will be wearing an orange jumpsuit, not the length of time he will be wearing it. If Smith's actions helped increase the likelihood of future sanctions against Nifong for his overall gross misconduct, that's good enough for me.

We need to keep our eye on the prize -- Nifong is jail for several years, not a mere 30 days.

KC indicates that the 1 day sentence was to thwart a potential appeal by Nifong. I don't buy it. Nifong is running out of money to pay legal fees at this point. He would have taken a fine and how many number of days would have been appropriate, but certainly more than one. Secondly, KC does not address the fact that Smith allowed Nifong to try the lacrosse case in his contempt hearing. How many times did we hear the erroneous statement that Dave Evans' DNA was under the false fingernail? This should have been shut down immediately by Smith and yet he allowed Nifong to continue slimming the players for more than an hour on direct examination. In addition, Crystal Gail Mangum is a false accuser and that now is a part of the official record. Why was Nifong allowed to refer to her as the victim? Judge Smith did not keep the lines of demarcation in these two cases separate and there is no justifying it.

The opinion of Duke Law's Tom Metzloff is of little weight. Indeed, save James Coleman, the opinion of anyone at Duke Law school counts for little, in my opinion. This cabal of high-toned lawyers stood by like store window dummies while a near-lynching took place under their very noses. Meanwhile, they've got thousands of man-hours to waste on defending enemy combatants who are trying to kill US citizens.

I cannot disagree with that at all.

Erwin Chimerinsky is a law professor that most comes to mind.

Back in the 90's, he was all over the cable shows opining about the OJ Simpson case, yet here...at the very school that employs him, he stayed silent.

Well, I guess that's why. Carrying Brodhead's water.

And, yes. These professors sure get off on making excuses for Muslim murderers who have infiltrated our very neighborhoods.

Long-time reader, first-time poster. I am in awe of the quality and quantity for your output. If I may offer a picky editorial suggestion. Perhaps change "Jim Glover's substantial objections" -- which could be read to mean objections of substance -- to "frequent," "multiple" or even "tedious."

Deviate from the imperialist, genocidalist warmonger line like Ward Churchill.

9/3/07 9:47 AM

While I have supported Churchill's right to free speech and disagree with what happened at Colorado, nonetheless his contention that the 3,000 people in the World Trade Towers deserved to be killed because they were "little Eichmanns" is evil.

Interestingly, in his career, Churchill was in open support of the people who killed millions in the name of promoting "socialism." So, I guess the poster supports genocide, providing the "proper" people are murdered.

Don't forget that the ideological allies of Ward Churchill were the faculty members who were the most vociferous in insisting that Reade, Collin, Dave, and the rest of the LAX players were rapists, and that Nifong's actions were warranted.

Excellent comments but, by now I am used to read everything and every day regarding this case.Thank you, Professor Johnson, and the bloggers for the high quality comments. For me, born in a communist country and escaping some 39 years ago, following this extraordinary process of justice is an enlightenment,it reinforces my faith and love for this country who gave me shelter as a political refugee.

This article was in the H-S today. What the people there fail to admit is that the way they run the town--the waste and the endless largesse--is the reason they always come off looking like the Third World of the Triangle.

Figures show poverty increased in Durham

DURHAM -- The number of people living in poverty is on the rise in Durham.

Despite numerous organizations in Durham working against poverty and countless community initiatives, the problem of impoverished Durham County residents is not going away, or even getting whittled down.

According to U.S. Census Bureau data released last week, there were 37,000 Durham County residents below the poverty level in 2006, about 8,600 more people than during the 2000 Census, or a 30 percent increase.

The numbers paint an accurate picture of what social workers and county staff are saying on the ground.

"We've seen pretty dramatic increases in food stamps," said Sharon Hirsch, assistant director for program support at the Durham County Department of Social Services.

About 22,400 people were recipients of some form of aid at the DSS between July 2006 and June 2007, she said, the highest it's ever been.

More people have been coming by for crisis services such as help with utility payments and basic medical care not covered by Medicaid.

"A lot of this is because of low-wage jobs that don't provide health insurance," Hirsch said. "There's a growing service sector for folks without a high level of education."

At the same time, Durham's overall population has grown by 11 percent since 2000, and the increases are expected to continue.

The Triangle area is attractive to a variety of people. From migrant workers attracted by the abundance of jobs to young professionals and families looking to settle down, to the elderly who "half-back" from Florida to a midpoint on the East Coast, the Triangle and Durham are bracing for growth.

"What we're watching for in the future is the elderly population growing at a far greater rate than the rest of North Carolina," Hirsch said. "North Carolina is already considered very attractive. The Triangle, in particular, primarily because of our medical facilities."

The growing number of uninsured people among the impoverished is a cause for concern, said Gayle Harris, assistant health director for the Durham County Health Department.

"People who are uninsured or in poverty without insurance are more likely to delay going in for health care, more likely to need more intense care when they do go in because of the disease progression," she said.

According to the Cecil G. Sheps Center for Health Services Research at UNC, about 76,000 Durham County residents under 65 did not have health insurance in 2005.

The number of people in poverty increased by about 25 percent between 2005 and 2006.

Census Bureau spokespeople explained later that the increase was mostly due to changes in the collecting of data. People in group homes were not counted in the 2005 numbers, but were in 2006, they said.

John Quinterno, a research associate with the N.C. Budget & Tax Center, said the trend on the whole for North Carolina was that household income had stayed about level this decade.

"On the state level, we showed improvement from last year to this year," he said. "But if you compare [this area] to 2001, incomes really haven't changed that much since then. That's alarming."

"If the economy is growing," Quinterno said, "shouldn't that growth be turned back somehow to alleviate poverty?"

"(I think [KC's] critiques of the academic performance of certain professors may be misleading to a lot of people, leading them to believe that these professors are representative of the professorate at Duke) . . ."

If a group of C-level executives are committing fraud, do you conclude that they are "representative" of that company's employees? Obviously not, as there are undoubtedly other employees who are honest and responsible. But then this is not the point. Given such a degree of corruption, it is appropriate to conclude that the company's corporate culture is diseased.

And if the company's leadership does nothing to punish the guilty -- but, in fact, abets and *rewards* them -- do you conclude that this represents a monumental failure by the institution's leadership?

In the editorial of August 29, the writer stated "We may also wish that the players would refrain from demanding a huge settlement that will only hurt Durham taxpayers who played no part in putting them through what, admittedly, was a long nightmare." I not only disagree, I strongly disagree! The taxpayers chose to reelect the person most responsible for that debacle last October when the case was already so rank it could be smelled nationwide. Yes, the taxpayers who voted and those who did not are equally responsible for that.

Beyond that, however, they are also responsible for electing other city officials that directly or indirectly, through the people they hired played a significant role. Were they not taxpayers who demonstrated, made pronouncements, wrote damning newspaper articles that inflamed the situation to the point of national attention?

This is, of course, a rhetorical question, and we know the appropriate response. If this were an unusual case where everything that could go wrong did, it would be different in my view. Such is not the case. I've lost count of the multitude of embarrassing situations Durham has been placed in over the years by the actions or inaction of those elected or hired to lead.

The three young men have sustained severe damage and those responsible should pay, and that includes the taxpayers.

I had forgotten that this is the same Rodgers who told Jesse Jackson to shove it when The Rainbow Push extortion machine headed to the Silicon Valley. The following are excerpts from pages 337-341 of Kenneth R. Timmerman’s excellent book “Shakedown, exposing the real Jesse Jackson”. Jackson had success with automotive, banking and other industries and was moving west toward the Silicon Valley…and T.J. Rodgers.

"...There are two camps of corporate CEOs. There are the camp followers, who want to suck up and be seen on stage with Jesse to show the world that they are liberal broad-minded people. And then there are those who know deep down that he's a fraud, but who crawl under their desks. They take a long hard look at the upside-downside for a relationship with Jesse and decide it’s just not worth it to confront him. I had decided to join the under-the-desk dwellers when Jackson came to town. As much as I’d have liked to criticize him, the upside was limited and the downside appeared astronomical, so I agreed with my board. If by speaking out against him I caused our shareholder to lose wealth, it was simply no good….”

“…then something happened, “I remember I was driving to work, I was listening to him (Jackson) talk on the radio and it was totally outrageous, I got angry. Here was guy who had no idea how Silicon Valley worked…it was so insulting…I decided then and there not to let him get away with it…” – T.J. Rodgers

“…He (Jackson) uses the black community to threaten corporations, but then who benefits? It’s not the black community. It’s a handful of black businessmen around Jesse Jackson.” – Robert Woodson, National Center for Neighborhood Enterprise.

“…I discovered that the threat of being called a racist – assuming that you’re not and that your actions speak for themselves – is not that bad. You don’t have to fear Jesse Jackson.” He (Rodgers) then challenged Jackson to a public debate in California but never received a response, “He (Jackson) turned me down four times.”

“…My advice to other CEOs? Why don’t you grow a pair of balls? Or, if you’re a female, whatever is the female equivalent. I don’t think Jesse Jackson is making a lot of money out here. We pay for value. He provides no value at all.”

Does the Klan of 88 provide value? Or are they sucking the oxygen out of the room?

Don't forget that the ideological allies of Ward Churchill were the faculty members who were the most vociferous in insisting that Reade, Collin, Dave, and the rest of the LAX players were rapists, and that Nifong's actions were warranted.

Anonymous said... "What does a tenured professor have to do to get punished?"

Deviate from the imperialist, genocidalist warmonger line like Ward Churchill.

9/3/07 9:47 AM

You see, for many professors, cheering a terrorist attack on American soil that killed 3,000 is merely "deviating from the imperialist genocidalist warmonger line". Our betters in academia know that those who deplored the attack are supporters of the "imperialist genocidalist warmonger line".

[/sarcasm]

Besides, Churchill wasn't punished for what he wrote about the 9/11 attack. He was investigated for it, and then he was punished for being a fraud.

Duke1965 3:22 said... ...While I certainly don't agree with KC on everything (I think his critiques of the academic performance of certain professors may be misleading to a lot of people, leading them to believe that these professors are representative of the professorate at Duke)...::I agree with you but there are millions of people who, before this case, did not much care for professors in the first place.

What exactly are the 'professorate' at Duke doing to dispel the notion that the G88 represent the entire faculty?

It is one thing to harm others but it is quite another to sit back and watch others in your group turn on their own students like a pack of wild dogs.

We're going backwards should the opening agenda items for the first faculty senate meeting this year.::GP

Well, maybe I'm just a cynic, unable to recognize Smith's powers of prophecy - that he had somehow divined AG Cooper's future mind.

To me, it seemed a high-risk exercise to "bide his time," especially based on a kind of blind faith in the system, that is, the shifting political winds.

Smith allowed himself too many convenient options by playing prophet - which I saw as more strategic than paranormal.

Of course, there's another possibility, that the divine principals - feeling the political wind - communicated via proxy, by psychic telegraph tapped out on the tilting scales of the ABA.

The remedy is even more appalling, that the people, the outliers, should take good and fair comfort in a pathetically symbolic sentence - saying in effect, "Nay, you just don't understand, 'It's the thought that counts."

While this does not relate directly to this thread, I want to post a letter I received from Ryan McFadyen, a young man who I believe was severely wronged during this affair. The letter speaks for itself:

Dear Mr. Anderson,

In response to your piece, “In Praise of Ryan McFadyen”, I would like to first say a very belated thank you. Among the more than 90,000 hits my name generates on a Google search, your article is the only one that speaks highly of me and highlights the difficulty of my situation over the past year and a half. To this day I still remember the expression on the faces of my younger sisters on the morning of April 5th. . The television was illuminated with my picture and the news anchor made a remark about what a disturbed person I must have been. Though you did not live through my ordeal, you seem to understand what I have gone through, and further you were able to see through the negative stereotypes that were being associated with my name,

Since I can remember, I have always believed that actions speak louder than words. Still to this day, I regard this statement as true. However, over the last year and a half I have learned first hand of the power the written word possesses. It is through this same medium that I would like to correct and highlight several things I believe the public should know.

It is almost seventeen months ago today that my e-mail went public, the language of which I will never forget. I have heard it repeatedly from the day it was first released and never could have imagined the criticism I would receive because of it. As you pointed out, Bret Easton Ellis’ American Psycho is part of the curriculum here at Duke, is taught by a number of professors and familiar to numerous students yet President Brodhead still found my reference to the novel “repulsive”. While I can agree that the book nor the movie is for the faint of heart, I wonder how my university President would respond to the lines from the of the actual novel. I quote from page 304,

I start by skinning Torri a little, making incisions with a steak knife and ripping bits of flesh from her legs and stomach while she screams in vain, begging for mercy in a high thin voice, and I’m hoping that she realizes her punishment will end up being relatively light compared to what I’ve planed for the other one. I keep spraying Torri with Mace and then I try to cut her fingers with nail scissors and finally I pour acid…(Ellis)

The scene finishes when Patrick Bateman, the main character, reaches sexual nirvana with the decapitated head of the girl around his genitalia. Within this context, I understand the sexist and homicidal themes of the book reflect poorly on myself given the circumstances of last spring.

It must be understood, however, that my email was written wholeheartedly in jest and in no way did my teammates or I intend to act on the references I made. Further is was a private email send to my closest of friends all of whom understood the reference and immediately passed it off as a joke. After a night where, as you said, a number of us felt “ripped off,” I wrote my email not out of anger for what had happened but instead to break the tension that arose from the now-infamous party. Had I known then how the following weeks would unfold, my e-mail would have been drastically different. Hindsight is indeed 20/20 and, in this case, rife with sincere compunction.

I understand the assumptions that can be made from reading what I wrote and again, I regret ever writing such an ill-thought and immature joke. I apologize sincerely for the anguish this may have caused and stress that I never meant for such things to happen. I would also like to emphasize the fact that nothing I did involving the email or the money mentioned in Dave Evans’ written statement was illegal.

The next important issue I want to touch on is the means by which the Durham Police Department obtained my email. While I cannot say with certainty that it was obtained illegally, I cannot be certain that it was not. Further, the cancellation of the external investigation into the Durham Police Department’s handling of the Duke Lacrosse non-rape case only raises my suspicions. I also call into question Duke University’s involvement, though at this time I have no concrete evidence of wrongdoing, only suspicions.

Although I can continue to point blame elsewhere, I must correct the idea that I was given a choice about what would happen next. While I do enjoy the image you paint of me in the police station telling Sergeant Gottleib that I would rather suffer than send my innocent teammates to jail, I was actually never taken to the station and presented with this choice. Instead, the police used a bogus conspiracy to commit murder charge and elementary scare tactics while searching my dorm room and car in an attempt to get me to say anything to incriminate my teammates. At one point a short, balding officer even put me on the phone with Sergeant Gottleib, who threatened me saying physical force would be used to gain entry to my car if I didn’t help the officers find it. (I had at this point still not seen a search warrant.)

Ultimately, the shame I have brought upon myself and the indignity I have brought upon my family, friends, The Delbarton School and Duke University overshadows the wrongs of those against me. I regret the consequences that have stemmed from my actions and accept full responsibility for what I did.

Obviously I am grateful for the chance to once again play the sport I love with the men I am proud to call my teammates. In the upcoming seasons my teammates and I will do all that is possible to demonstrate the responsibility and professionalism that will eventually become synonymous with Duke Lacrosse.

I have always tried to do what is right and would never condone the alleged action that is said to have occurred in the house that night. I fully support my indicted teammates and wish them all luck in the future. To this day I have never been fully be able to express my true feelings on what happened in the spring of 2006, though I have tried many times. I want to again thank you Mr. Anderson for giving me a chance to express my feelings and set a number of issues straight. I wish you health, happiness and look forward to talking to you in the future.

Nicole 10:37 said... ...Excellent comments but, by now I am used to read everything and every day regarding this case.Thank you, Professor Johnson, and the bloggers for the high quality comments. For me, born in a communist country and escaping some 39 years ago, following this extraordinary process of justice is an enlightenment,it reinforces my faith and love for this country who gave me shelter as a political refugee. ::I'll not forget what you had to say 10:37 and appreciate the time you gave to us this morning.

You must be the reining expert here on the meaning of political narratives that were said to be correct but with facts that known to be incorrect.

First, I must express some longstanding irritation with the trolls who ask, "Is (insert name here) a communist?" Aside from being totally irrelevant except insofar as a communist, like a fascist and others, supports totalitarian government with little to no chance of justice for the accused, regardless of their actual guilt, it smacks of McCarthyism. The relevant question, then, isn't about their position on the political spectrum. The relevant question is, rather, whether or not one supports justice and the very ideals upon which our nation was founded. In this instance, a great number of people, predominantly though not entirely, from the left, stood against that which they typically claim to stand for. In other instances, it's the right that does so. In all instances where people stand against the proper administration of justice, however, it's wrong.

As Professor Johnson has said, the most important thing is that Nifong has been held criminally accountable for his misconduct. Furthermore, I think Judge Smith allowed the defense to make any arguments it wished in an effort to, again, eliminate any chance for a successful appeal. I believe there's an old saying that goes, "When the facts are on your side, argue the facts. When emotion is on your side, argue emotion." What I would add to that statement is this: "When neither are on your side, bend over and kiss your --- goodbye."

To Mikey himself, I found a wonderful website full of curses in Yiddish. I chose Yiddish because I've found their swears are delightfully inventive. So, Mikey, "Hindert hayzer zol er hobn, in yeder hoyz a hindert tsimern, in yeder tsimer tsvonsik betn un kadukhes zol im varfn fin eyn bet in der tsveyter." (A hundred houses shall he have, in every house a hundred rooms and in every room twenty beds, and a delirious fever should drive him from bed to bed.) His suffering has just begun.

bill anderson 11:42 said... ...While this does not relate directly to this thread, I want to post a letter I received from Ryan McFadyen, a young man who I believe was severely wronged during this affair. The letter speaks for itself:::Ryan,

The instant I read that e-mail I knew there was going to be difficulty with people who do not deal well with irony or ironic statements.

But there is always a bright side to every story.

Tell you sisters that they have a great opportunity now that they may not have thought about.

When they meet new female friends who do not have a brother...your sisters should be prepared to answer the question...What's it like having a brother?

And... you will be a wonderful father someday who will understand PERFECTLY when your son says...It seemed like a good idea at the time!

Mandelbrot's Chaos 11:54 said... ...First, I must express some longstanding irritation with the trolls who ask, "Is (insert name here) a communist?" ::You are correct of course but I always smile when I see that phrase.

My Grandfather was a labor leader in the years following the Korean conflict and he was annoyed continually with all problems being laid out at the feet of communism.

When I was little I asked him why the grass did not grow under his Magnolia tree in the front yard.

We all know that this case was all about black bad behavior (even Nifong's was based on his--correct--understanding that Durham blacks have a strong antipathy for whites, and so would want a successful prosecution, facts be damned).

"Does the Klan 0f 88 provide value? Or are they sucking the oxygen out of the room"

This excerpted quote from a posted comment on KC Johnson's "Durham-In-Wonderland" Blog deserves to be adopted and memorized, then acted upon by everyone who cares about Duke University's current state-of-health.

Don't continue giving President "Narrow"head and his abeters a free pass.

Hold him and them accountable for the public answers to these two questions.

It's unacceptable to have them ask themselves a different question and proceed to answer a convinient "powder puff" politician's substitute query. Keep asking these very 2 important questions in a loud collective voice until one of three things happen:

1. The constant ducking and avoidance becomes so prevalent that someone posts a collage of these ducks and sidesteps on YouTube for all to see and comment upon.

2. The questions are finally answered untruthfully and the matter becomes public record for accountability, review and repercussion.

3. The unthinkable happens - and thus the questions are finally answered TRUTHfully - and the matter becomes public record for accountability, review and repercussion.

Thank you for sharing Ryan McFadyen's e-mail. He was surely victimized by the HOAX and the willingness of officials in authority to toss the rule book aside.

I share his sentiment about the cancellation of the DPD investigation, for it seems clear (as Ryan points out) that someone may have illegally obtained his e-mail. Further, for the Durham Police Department to have sanctioned, even implicitly, the use of Gestapo-like scare tactics in the investigation of Ryan (and surely others) is another manifestion of the disease of both Duke and Durham.

Again, thanks for sharing and I wish Ryan and the rest of his team the best, in both lacrosse and their future.

If the Duke professors were corporate executives (which they're not), of course I would expect them to be punished. The problem with your analogy is that a university operates by a far different set of rules than a corporation (perhaps that should change, but that's a different issue). As you well know, under the protective mantle of tenure and academic freedom, professors are largely immune from the consequences of their statements; this is unheard of in a corporation. Universities and corporations are very different beasts indeed.

That said, there was nothing to prevent Broadhead (or Coach K, for that matter, as he has acknowledged) from strongly supporting the students' right to fairness and due process, particularly as events unfolded in the spring and summer of 2006, and to condemn the frenzied rush to judgement by a relatively small number of professors. That, in my mind, was a terrible failure of leadership.

Some of us just aren't into the blood, soil and cloth worship that passes for patriotism, these days, among the chandala.

Should I go directly to Gitmo?

9/3/07 12:14 PM

For DiW readers who don't know, chandala "is an opprobrious term, reserved for a despised group of peoples in India by people of India". In modern America it equates to "redneck, country bumpkin, hayseed, hick, trailer trash".

Well, I'm guilty on all counts, Anonymous Sahib. Heck, I was even born in a trailer -- a real 7' by 12' trailer with the wheels still attached, not one of those fancy "mobile homes".

But I'm curious. You said "these days" like you expect the "blood, soil, and cloth" patriotism to give way to something new. So, what is the new form of patriotism that you Brahmin want us to adopt?

While this does not relate directly to this thread, I want to post a letter I received from Ryan McFadyen, a young man who I believe was severely wronged during this affair. The letter speaks for itself:

That is fine, but I found a portion of this letter very curious.

This is what the letter-writer states toward then end of the letter:

I have always tried to do what is right and would never condone the alleged action that is said to have occurred in the house that night. I fully support my indicted teammates and wish them all luck in the future.

That portion indicates that the letter was written at the time the charges were pending against the LAX three, and before the AG dismissed the indictments.

However, earlier in the letter, when discussing the writer's interaction with the Durham Police, this statement is made:

"Further, the cancellation of the external investigation into the Durham Police Department’s handling of the Duke Lacrosse non-rape case only raises my suspicions."

Unless I am missing something, I assume the "external investigation" that the writer is referring to is the suspension (not cancellation) of the Whichard Committee's work in investigating the Durham PD.

The suspension of those activities ocurred just last week.

So, I would ask these questions:

When did you receive the letter?

When was it written?

To what "external investigation of the Durham Police Department" is the writer referring?

If the letter was written before the Whichard Committee suspended its work, how on earth can the writer refer to that event?

Perhaps I am missing something here, so would you please answer my questions and explain what appears to me to be a discrepancy in this letter you posted?

Remember during Nifong's disbarment trial, whenNifong said he made mistakes, but they were hismistakes NOT the ones that the Bar accuses him of?

One of his "mistakes" Nifong says was that he didn'tinstruct Meehan on what to say during that Dec 15 hearing. He actually said that publicly! He basically admittedthat he forgot to cover his tracks with respect towhat Meehan would say -- that was one of his"mistakes" -- not that he lied through his teeth,exploited racial tensions to win an election, andintimidated and/or bought witnesses, just to namea few of his criminal acts.

It's clear that Nifong considers another one of his"mistakes" to be the fact that he allowed JudgeSmith to be one of the four judges to hear the case.

"Folks, keep in mind that this was merely hiding evidence, and not so important (apologies to Brad Bannon) evidence at that. By far the most important DNA evidence was that there was no match to the Laxers, not that there were matches to other men. Now if Nifong had hid the fact that there were no DNA matches to the Laxers, that would've justified a much more serious punishment."

I'm sorry, 9:24, but you're very wrong here. The DNA evidence that Nifong and Meehan conspired to hide and that Bannon discovered was crucial. The fact that there were no DNA matches to the lacrosse players was already public knowledge, but it was not completely exculpatory. Why? Because it could be explained in two ways:* There was never any DNA deposited on or in Mangum by the lacrosse players; or* There had been DNA of the lacrosse players on or in Mangum, but she had washed it away, or the samples had been poorly handled, or the testing was done poorly, et cetera.

If the Y-STR testing performed by DNA Security had actually returned no DNA matches, as the SBI rounds of testing had done, then the prosecution could have argued that the tests had simply been false negatives (as indeed, the results of the first rounds of testing were -- for the five unidentified males!) But the fact that the Y-STR testing was able to pick up the DNA of five separate unidentified males blasted the hell out of nearly any theory that took the form of "the lacrosse player DNA had been there, but the test didn't pick it up because ..."

Yes, it's significant that the DNA testing failed to find any DNA from the lacrosse players. But the evidence that Nifong tried to conceal is what made that failure significant.

Even after the AG announced innocence, the three indicted teammates were still the indicted teammates. They were then the exonerated indicted teammates, but they were still the teammates that had been indicted.

The fact that they had been found innocent did not remove the fact that they had been indicted. That is a fact that will remain forever and exists as one of the harms inflicted upon them.

So the temporal contradiction you question is really a very simple matter to explain ... if you allow that "indicted teammates" still describes the three victims, for they were and are the indicted teammates.

Beyond that, the precision of thought required to parse the distinction between the present tense view of the past and the past tense is not of import.

After having a long weekend to think about it... I still can't help but wonder -- Judge Smith found Nifong guilty of criminal contempt for lying in court, in response to a direct response to a Judge's question -- about critical and exculpatory evidence that he was withholding from the defense.

Does the one day sentence imply that Smith believes Nifong's actions so insignificant that other criminal contempt violations might be 30 times worse?

Duke1965 said... "I think his critiques of the academic performance of certain professors may be misleading to a lot of people, leading them to believe that these professors are representative of the professorate at Duke."

Looking at the some total of public statements made and public actions taken, as a practical matter they are the ones representing Duke to the world. Any of their colleagues who are unhappy with this fact have only their own silence to blame.

"If the Duke professors were corporate executives (which they're not), of course I would expect them to be punished. The problem with your analogy is that a university operates by a far different set of rules than a corporation (perhaps that should change, but that's a different issue)."

It's a very germaine issue.

A spectacular failure of governance has occurred. It is a part of a larger pattern both at Duke (miriam cooke disrupting a Horowitz lecture and not being disciplined under the schools code of conduct) and in academia as a whole (Ward Churchill, Larry Summers, etc., etc., etc.)

The Duke Lacrosse Burning is a test for academic self-governance and "academic freedom" as currently understood. If a university operating under the current rules can't correct a problem this serious and this unambiguous, then those rules need to be changed.

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